Opinion
22-CV-3045 (LTS)
05-02-2022
STEVEN BUSH, Petitioner, v. THE PEOPLE OF THE STATE OF NEW YORK, Respondent.
ORDER TO AMEND
LAURA TAYLOR SWAIN, CHIEF UNITED STATES DISTRICT JUDGE
Petitioner, who is currently incarcerated at Auburn Correctional Facility, brings this pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254, challenging his September 5, 2019, conviction in the New York Supreme Court, New York County. By order dated April 14, 2022, the Court granted Petitioner's request to proceed in forma pauperis (IFP), that is, without prepayment of fees. For the reasons discussed below, the Court directs Petitioner to file an amended petition within 60 days of the date of this order as detailed below.
STANDARD OF REVIEW
The Court may entertain a petition for a writ of habeas corpus on “behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). Under Rule 4 of the Rules Governing § 2254 Cases, the Court has the authority to review and dismiss a Section 2254 petition without ordering a responsive pleading from the state, “[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court.” Rules Governing § 2254 Cases, Rule 4; see Acosta v. Artuz, 221 F.3d 117, 123 (2d Cir. 2000). The Court is obliged, however, to construe pro se pleadings liberally and interpret them “to raise the strongest arguments they suggest.” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (internal quotation marks and citations omitted) (emphasis in original); see Green v. United States, 260 F.3d 78, 83 (2d Cir. 2001). Nevertheless, a pro se litigant is not exempt “from compliance with relevant rules of procedural and substantive law.” Triestman, 470 F.3d at 477 (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)).
BACKGROUND
The following facts are taken from the petition and public court records. On August 13, 2019, after a jury trial, Petitioner was convicted in the New York Supreme Court, New York County, of attempted assault in the first degree and criminal possession of a weapon in the second degree. On September 5, 2019, he was sentenced to concurrent terms of 12 years' imprisonment. Petitioner appealed his conviction, and the New York Supreme Court, Appellate Division, First Department, affirmed the conviction on December 22, 2020. See People v. Bush, 189 A.D.3d 643 (1st Dep't 2020). Petitioner did not seek further review of his conviction in the New York State Court of Appeals.
Contrary to the Appellate Division's decision, Petitioner asserts in the petition that his appeal was denied on December 22, 2021. (ECF 2, at 2.)
Petitioner asserts several grounds for relief, the majority of which he acknowledges were not presented to the state courts: (1) actual innocence; (2) the government failed to prove all elements of the crimes of which he was convicted; (3) violation of his right to confront the alleged victim under the Sixth Amendment; and (4) violation of his right to a fair trial under the Fourteenth Amendment. Petitioner repeatedly asserts that he was provided ineffective assistance of counsel because his appellate counsel did not give him an opportunity to review the appellate brief before submitting it to the Appellate Division and failed to thoroughly address or properly review some of the grounds for relief on direct appeal. Petitioner does not, however, raise ineffective assistance of appellate counsel as a ground for relief.
Petitioner indicates that he is raising seven grounds for relief (ECF 2, at 16), but he clearly set forth in the petition only the four grounds stated above.
DISCUSSION
A state prisoner must exhaust all available state remedies before filing a petition for a writ of habeas corpus under Section 2254. 28 U.S.C. § 2254(b); see Rose v. Lundy, 455 U.S. 509, 510 (1982). This exhaustion doctrine means that the state courts must be given the first opportunity to review constitutional errors associated with Petitioner's confinement. O'Sullivan v. Boerckel, 526 U.S. 838, 844-45 (1999). A petitioner may satisfy the exhaustion requirement by fairly presenting his claims through a state's established appellate review process. Id. “A petitioner has ‘fairly presented' his claim only if he has ‘informed the state court of both the factual and legal premises of the claim he asserts in federal court.'” Dorsey v. Kelly, 112 F.3d 50, 52 (2d Cir. 1997) (quoting Daye v. Attorney General, 696 F.2d 186, 191 (2d Cir. 1982)).
In order to exhaust any issues for purpose of habeas corpus review, Petitioner must appeal his judgment of conviction to the New York Supreme Court, Appellate Division. N.Y. Crim. Proc. Law § 460.70. Should that court's decision adversely affect Petitioner, he should then seek leave to appeal to the New York Court of Appeals, the highest state court. Id. at § 460.20; see Bagley v. LaVallee, 332 F.2d 890, 892 (2d Cir. 1964). Should Petitioner raise for habeas corpus relief any grounds raised in N.Y. Crim. Proc. Law § 440.10 motions and/or other collateral motions, he must show that those grounds have been completely exhausted by seeking leave to appeal to the Appellate Division. Ramos v. Walker, 88 F.Supp.2d 233 (S.D.N.Y. 2000).
Petitioner's pleading does not demonstrate that he has fully exhausted his available state court remedies with respect to any of the grounds on which he seeks habeas corpus relief. He does not allege that he presented his grounds for relief on direct appeal - including seeking leave to appeal to the New York Court of Appeals -or in any postconviction collateral motion or application. In fact, Petitioner asserts that he presented on appeal to the Appellate Division only one of the four grounds that the Court was able to discern in the petition, and that he did not appeal that ground to the Court of Appeals.
LEAVE TO AMEND
The Court grants Petitioner leave to submit an amended petition within 60 days of the date of this order. Should Petitioner decide to file an amended petition, he must clearly state all of his grounds for relief and supporting facts, and detail the steps he has taken to exhaust them fully in the New York courts. Petitioner must exhaust all available state-court remedies in order to proceed with this petition. See 28 U.S.C. § 2254(b)(1). Petitioner is advised that an amended petition completely replaces the original petition.
The Antiterrorism and Effective Death Penalty Act of 1996 requires that a federal habeas corpus petition must be filed within one year of the latest of four dates specified. See 28 U.S.C. § 2244(d)(1); see also Reyes v. Keane, 90 F.3d 676 (2d Cir. 1996).
CONCLUSION
Petitioner is directed to file an amended petition containing the information specified above. The amended petition must be submitted to the Clerk's Office within 60 days of the date of this order, be captioned as an “Amended Petition” and bear the same docket number as this order. An Amended Petition Under 28 U.S.C. § 2254 form is attached to this order, which Petitioner should complete as specified above. Once submitted, the Court will review the petition for substantive sufficiency, and then, if the amended petition is sufficient, the case will be reassigned to a district judge in accordance with the procedures of the Clerk's Office. If Petitioner fails to comply with this order within the time allowed, and cannot show good cause to excuse such failure, the petition will be denied.
Because Petitioner has not at this time made a substantial showing of a denial of a constitutional right, a certificate of appealability will not issue. See 28 U.S.C. § 2253.
The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this order would not be taken in good faith and therefore IFP status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
SO ORDERED.